Ayn Rand on Punishment - Reason Papers
Transcript of Ayn Rand on Punishment - Reason Papers
Reason Papers Vol. 35, no. 1
Reason Papers 35, no. 1 (July 2013): 68-91. Copyright © 2013
Ayn Rand on Punishment
Irfan Khawaja
Felician College
1. Introduction
David Boonin has given us a concise and lucid critique of Ayn
Rand’s views on punishment that is very much in the spirit of his provocative
book The Problem of Punishment.1 My aim here is both to respond to
Boonin’s critique and to offer a more general exposition of the Objectivist
conception of punishment. I begin in Section 2 with some methodological
remarks on the definition of “punishment” (further elaborated in Appendix A)
and a sketch of a conception of punishment derived from Rand’s theory of
justice (further elaborated in Appendix B). I move in Section 3 to some
interpretive issues concerning the right way to read the Rand-Hospers letter
exchange (further elaborated in Appendix C). In Section 4, I respond to
Boonin’s four counter-examples to Rand’s view. Section 5 ends with some
thoughts about the further development of the Objectivist theory of justice.
2. What Punishment Is
In a very general sense, Rand and Boonin agree on questions of
method. Both agree that an inquiry into topic X presupposes a definition of X,
presupposes an explicit statement of the problem in question, and requires an
explicit statement of adequacy conditions on its solution. Boonin’s critique of
punishment is admirably explicit on both counts, both in his critique and in his
book. Yet despite this general agreement, Rand would, I think, disagree not
just with the upshot of Boonin’s critique, but with the way he sets it up. So let
me begin with disagreements about the definition of punishment, and move
from there to the problem of punishment itself.
a. Punishment as debt collection
Boonin opens his critique “with the question of what punishment is,”
and concludes that “[p]unishment thus involves, at the very least, intentionally
harming a person because the person has been convicted of a crime.”2 Given
1 David Boonin, “Ayn Rand and the Problem of Punishment,” Reason Papers 35, no. 1
(July 2013), pp. 58-67; David Boonin, The Problem of Punishment (Cambridge, UK:
Cambridge University Press, 2008).
2 Boonin, “Ayn Rand and the Problem of Punishment,” pp. 58 and 59.
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this definition of punishment, the problem of punishment becomes why it’s
morally justifiable to harm criminal offenders, and Boonin concludes that
Rand’s view fails because it fails to solve the problem so conceived. While
Rand would agree (perhaps trivially) that punishment is intentional, she is, as I
see it, committed to rejecting Boonin’s definition of punishment, and a
fortiori, his characterization of the problem of punishment. The resulting
difference in philosophical points of departure is not, I think, captured by
Boonin’s account of Rand’s views.
To the best of my knowledge, Rand herself offers no definition of
“punishment” in her published writings,3 and I find the semi-canonical
definition in the Objectivist literature unsatisfactory.4 In what follows, I offer
a definition of my own, one that I think follows from Rand’s theory.
On Rand’s view, in order to define a concept as abstract as
“punishment,” we have to locate it in a “hierarchy” of related concepts.5 Our
definiendum, ex hypothesi, is “state punishment.” State punishment is a
species of punishment, and thus presupposes a definition of the latter term.
Punishment and reward are in turn contraries, and are both instances of moral
desert in contexts of human interaction. On Rand’s view, moral desert is a
matter of what she calls the principle of trade, which might equally be
described as a principle of payments and debts. Leonard Peikoff puts the point
as follows:
The trader principle states that, if a man seeks something from
another, he must gain title to it, i.e., come to deserve it by offering
the appropriate payment. The two men, accordingly, must be traders,
exchanging value for value by mutual consent to mutual benefit. “A
trader,” writes Ayn Rand, “is a man who earns what he gets and does
not give or take the undeserved.”6
3 There is no entry for “punishment” in either the Ayn Rand Lexicon or in the Glossary
of Objectivist Definitions. See The Ayn Rand Lexicon: Objectivism from A to Z, ed.
Harry Binswanger (New York: New American Library, 1986), and Allison T. Kunze
and Jean F. Moroney, Glossary of Objectivist Definitions (Irvine, CA: The Ayn Rand
Bookstore, 1999).
4 For further discussion of the canonical definition, see Appendix A below.
5 For a discussion of epistemic hierarchy, see Leonard Peikoff, Objectivism: The
Philosophy of Ayn Rand (New York: Meridian, 1993), pp. 129-41. Despite my
disagreements with Peikoff (see Appendix A below), I rely heavily on his presentation
here.
6 Ibid., pp. 286-87. Emphasis mine.
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The trader principle, in my view, is the foundation of Rand’s theory of justice,
and thus the basic concept in an inquiry into reward and punishment. The
passage excerpted above nicely states the essence of the principle, but leaves a
great deal inexplicit.
On Rand’s view, each of us ought to act egoistically, in the sense of
making ourselves the ultimate intended beneficiary of our own actions.
Obviously, a great deal of this self-benefit is achieved through interaction with
others. At a minimum, the trader principle specifies a condition to be met for
interacting with others: If I interact with someone, I am obliged to pay her for
what I seek from her. There are many possible ways of seeking something
from someone, ranging from the completely explicit and fully articulated, to
the inexplicit and unarticulated but still determinately goal-directed. There are
likewise many ways of paying for something—many forms of “currency,” we
might say—corresponding to differences in the objects we seek from others.
The trader principle covers this entire range, generalizing across persons,
objects of pursuit, types of seeking, and types of payment. We should not be
misled, then, by Rand’s insistence on using the term “trade,” usually restricted
in common parlance to commercial transactions, to name a principle that
applies to human interactions as such. Rand clearly takes commercial trade to
be a paradigm of justice, but doesn’t restrict trade to commerce; even the
commercial trade she regards as paradigmatic is trade of a very circumscribed
variety.
According to the trader principle, then, if I interact with someone,
I’m obliged to pay her for the value she brings to the interaction, including the
virtuousness of character that she brings to it. Why “obliged”? Rand takes
moral obligation to be an application of the principle of conditional necessity,
that is, of bringing about the causal requirements of a goal that one has
volitionally set.7 The ultimate goal is egoistic flourishing. As an egoist, in any
interaction, I want the best of whatever the other person can give me. Since
wanting by itself won’t make it so, I need to take steps to induce the other
person to direct the positive consequences of her actions my way. But I don’t
want passively to wait or hope for these consequences to come about. I want
insofar as possible to contribute to the causal process that brings them about.
Now, I cannot literally cause another agent to act in my preferred way (since
she controls her own agency and actions),8 but I can give her incentives for
doing so. Incentivizing another person’s action is the closest I can come to
causing it. “Incentivizing” is of course another word for offering payment, and
the right payment to offer is the amount I can afford to pay that will get me
7 See Ayn Rand, “Causality Versus Duty,” in Ayn Rand, Philosophy: Who Needs It,
Centennial Edition (New York: Signet, 1982), esp. pp. 133-36.
8 See Ayn Rand, “The Metaphysical Versus the Man-Made,” in Rand, Philosophy:
Who Needs It, pp. 42-43.
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the best that the other person can give—which is what the trader principle
prescribes.
Our account of the trader principle will be incomplete, however,
unless we grasp the role that virtue plays in living by it. According to Rand,
an individual is at her best when she is fully virtuous. Given this, Rand thinks
that we get the best out of people when they are fully virtuous. So a rational
and virtuous agent seeks, insofar as she can, to express rationality and virtue
by seeking it out in others, incentivizing it, paying for it, enjoying the
consequences, and repeating the process. Put another way, one tries, to the
extent possible, to seek out those who are as virtuous as possible, and having
done so, to “exploit” their virtue by giving them inducements appropriate to
its exercise.
Notice that when I give you an inducement to exercise (say) your
productiveness, the payment I make to you is not a loss to me (not even a
short-term loss) but a gain. On Rand’s view payment cannot be decoupled
from receipts and cannot be considered a loss in abstraction from its being a
constituent of the whole trader relation. It is participation in the whole relation
that benefits me. Of course, since I enter relationships on the assumption that
the other party shares my commitment to trade (or to the extent that she does),
my payment to her is not just a payment made without consideration; it gets
me something in return. But it is a mistake to think that my egoistic interest
consists in free-riding on others’ efforts without paying them, that is, on
getting the unearned. In fact, my interest consists in trading, which is to say
that it consists in enacting the causes that bring out the best in others (and
oneself), of which payment is an irreducible part. So the payment I make to a
deserving trade-partner is as much in my interest as the payment I get from
her.
On Rand’s view, then, adherence to the trader principle (all of it) is
beneficial to the agent, while violations of it are harmful. The point is not that
violation may involve short-term gain that is offset by long-term harm. It is
that the “gain” involved in violation of the principle is an illusion, and the
desire for it, a pathology.9
One last point is worth making about the trader principle. As the
Peikoff excerpt suggests, trade presupposes mutual consent. If so, it follows
that political freedom is a background condition for the operation of the trader
principle.10
The initiation of force violates that condition, and thereby violates
the principle.
9 This contrasts sharply with the account of the Objectivist Ethics that Boonin gives in
his critique. It also contrasts sharply with the so-called “benefit-detriment” theory in
contract law according to which contracts require consideration, where that
consideration involves X’s giving Y what is “of benefit” to Y but “of detriment” to X.
10 A further implication is that the trader principle cannot apply in any simple way to
minors or other persons who are either incapable of consent or incapable of full
consent.
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The issue of violations brings us more directly to the topic of
punishment. There will, of course, be cases in which one person interacts with
another but fails to offer or give that person the appropriate payment for the
interaction, whether culpably or not. The initiator of the interaction thereby
incurs an unpaid debt. In the broadest sense, “punishment” denotes the
morally appropriate response to culpable instances of such debts. Now, trade
of necessity involves the incurring of some debts, so the sheer fact of having
incurred a debt cannot by itself be culpable, or make someone a candidate for
punishment. What makes a debt culpable is its delinquency—the volitional
refusal or unwillingness to pay one’s debt on time and in its full amount, or
else the volitional taking of the unearned without intention to pay. A person
who has failed to pay what she owes still owes it. The person to whom she
owes it is still entitled to it. In the ideal case, the morally appropriate response
would be to resolve the debt by getting it paid in full. Where that’s not
feasible, the next-best response would be to get the debt paid in part. Where
even that’s not feasible, the next-best response would be to prevent the unjust
person from using or having access to her ill-gotten gains.11
As a provisional definition, then, punishment is the exaction or
collection of a delinquent debt because of its delinquency, where the aim is to
resolve the debt in the lexically ordered sense just described. State punishment
is the government’s exaction or collection by force of law of those culpably
delinquent debtors to which the state is justified in responding. Two remarks
about these definitions are worth making.
First, since the conception of payment involved here is very broad, so
too are the conceptions of indebtedness and by implication punishment. Thus
the kinds of delinquencies at issue will vary greatly according to context, as
will the criteria for culpability, the criteria for delinquent indebtedness, and
the criteria for appropriate punishment. On this view, every interaction is to be
paid for by currency appropriate to the interaction, and every culpably
delinquent debt is a failure to pay some deserving party in the currency
appropriate to her merits. What an offender owes and how she’s to discharge
the debt turns on the sort of payment on which she is delinquent and how she
has incurred the debt in question. It also turns on the extent to which
rectification is possible, and if not, what approximations can feasibly be made
to it.
Second, we need to distinguish those culpably delinquent debts that
involve initiated force from those that don’t.12
Both are unjust, but to initiate
11 The closest cousins of Rand’s view in the contemporary literature that I know of are
debt-based retributivisms which take wrongdoing to generate both monetary and moral
debts that punishment serves to exact. See, e.g., Daniel McDermott’s “The
Permissibility of Punishment,” Law and Philosophy 20 (2001), pp. 403-22. I take the
view defended in the text to avoid the criticisms that Boonin makes of McDermott’s
view in The Problem of Punishment, pp. 149-52.
12 For further discussion of this point, see Appendix B.
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force is typically to take the unearned in a drastic and egregious way. If you
refrain from initiating force in your interactions with me, you are respecting
one of the conditions of justice—mutual consent—even if you violate the
others. If I initiate force against you anyway, I am aggressing against your
respect for justice, however flawed it may be. On Rand’s view, if I interact
with you, your forbearance from force deserves a payment in kind, namely,
my forbearance from it against you. So I can’t justly collect a debt from you
by force simply because it is culpably delinquent and owed to me. To be a
candidate for being collected by force, a debt must not just be culpably
delinquent, but involve initiated force.13
An implication of the preceding point is that if we act by mutual
consent, we each assume the risks of the other’s not living up to our
expectations, including expectations about the other’s adherence to the trader
principle. In that case, if you violate the trader principle in your (mutually
consenting) interactions with me, there is a (weak) sense in which I deserve it,
since in consenting to deal with you, I assumed the risk of precisely that
violation. In that case, your violation is in a (weak) sense a consequence of my
action, though of course, it’s much more a consequence of yours than mine.
b. Punishment, crime, and harm
This sketch of Rand’s conception of trade and punishment tells us
why Rand would reject Boonin’s definition of state punishment and, with it,
Boonin’s formulation of the problem of punishment. A first relatively minor
issue concerns punishment as a response to crime. A second and more
fundamental issue concerns punishment as the intentional infliction of harm.
On the Objectivist view (by contrast with Boonin’s), state
punishment is not necessarily a response to crime. Every culpably delinquent
debt deserves punishment of some kind. Some culpably delinquent debts are
rights-violations, and all rights-violations involve initiated force. Such
violations are (for reasons having to do with the nature of force) best dealt
with by law, as regulated by government.14
However, not all rights-violations
are crimes; torts and contract violations are not. In the case of (culpable) tort
or contract violations, one party incurs a culpably delinquent debt to another,
and does so by initiated force. The breached party suffers a grievance that
requires legal rectification, and legal action on Rand’s view is either
undertaken by government or at least supervised by it.15
On the Objectivist
view, all rectifications of culpable rights-violations count as punishments, and
13 My account of this issue diverges from the one Tara Smith offers of “the relationship
between justice and individual rights” in Tara Smith, Ayn Rand’s Normative Ethics:
The Virtuous Egoist (New York: Cambridge University Press, 2006), pp. 170-75.
14 See Ayn Rand, “The Nature of Government,” in Ayn Rand, The Virtue of
Selfishness: A New Concept of Egoism (New York: Signet, 1964), pp. 125-34.
15 Ibid., pp. 127-32.
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since the government is involved,16
they count as state punishments. What
distinguishes the law’s response to crimes and (culpable) torts and contract
violations is not that crimes are remedied by punishment while the others are
not, but that each offense involves a different sort of culpably delinquent
indebtedness, with debts to be discharged in different ways. Hence, life
imprisonment for murder is as much a case of punishment as being under
court order to pay restitution damages in a replevin action (where culpability
is involved) or as a judgment for expectation damages in a (culpable) contract
dispute.17
This brings us to a (yet) more contentious issue. Contrary to Boonin,
on Rand’s view, neither punishment generally nor state punishment aims to
harm the punished person. Punishment aims to exact payment for a delinquent
debt, and state punishment does this by legalized force. We would need a
further argument to show that exaction of delinquent debts was harmful to the
delinquent debtor before we could infer that punishment involved or aimed at
the production of “intentional harm.” In his critique, Boonin offers an
argument intended to show that punishment aims at harming the punished
person,18
but I don’t think that his argument secures that conclusion. What he
discusses are cases where someone has or enjoys something which he is then
16 This perhaps slightly overstates the point, since we can imagine Lockean states of
nature where no government exists, where rights-violations occur, and where
punishment of some sort is justified. On Rand’s view, though, Lockean states of nature
are suboptimal relative to societies under government; the case I describe in the text is
the paradigm case relevant to an initial sketch of the theory. I stress “all” in the text to
indicate that state punishment is for Rand not merely a justified response to crime but
to all other categories of culpable rights-violations.
It’s worth remembering, incidentally, that the Objectivist theory of rights
allows for the possibility of non-culpable rights-violations (e.g., purely accidental
boundary-crossings). On the view I’m defending, non-culpable rights-violations will
be candidates for some form of rectification but not full-fledged punishment. Cf. Tara
Smith’s account of rights-violations in her Moral Rights and Political Freedom
(Lanham, MD: Rowman and Littlefield, 1995), pp. 146-47; note that Smith’s definition
of “rights-violation” is compatible with non-culpability by the violator.
17 To anticipate two obvious questions: (1) Is proximate self-defense punitive? That
depends on the ultimate intentions of the person engaged in it. Insofar as an act of self-
defense constitutes the first step toward exacting a debt, I would say that if you act in
self-defense, you’ve initiated punishment. If the act in question is performed by a
government official (for purposes of exacting a debt), the act is a case of state
punishment. On the other hand, if a victim merely uses self-defense to ward off an
attacker with no further intention of collecting a debt, no punishment is involved. (2)
Are you are punished, then, when you are held in jail after arrest and before trial? Yes.
If you’re innocent, you’re unjustly punished, and ought to get compensation, unless
you’ve assumed the risk of pre-trial imprisonment in the act of consenting to be
governed.
18 Boonin, “Ayn Rand and the Problem of Punishment,” p. 59.
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obliged to relinquish either as payment for some service or as punishment for
some wrong he commits. Boonin infers in each case that the fact of
relinquishing something you have and want is a harm simply because you
once had it, now want it, but must part with it.
As I see it, Boonin’s argument is an ignoratio elenchi: It presupposes
that the unwanted relinquishing of any wanted thing is a harm (or a “loss” in
the sense of being a net loss), and presupposes that to show that someone has
suffered a harm, all you have to do is show that he has lost what he wants. As
Tara Smith points out in her book Viable Values, however, Rand rejected this
thesis. As Smith puts the point, something harms someone if it undermines his
interest, but
[s]omething is in a person’s interest only if it offers a net benefit to
the person’s life. Since a person’s life is not reducible to any isolated
element of his condition, we cannot fasten on such elements to draw
valid conclusions about what truly serves a person’s interest.19
Neither the sheer wanting of x at t1 nor the intensity of the agent’s desire for x
at t1, entails that loss of x from t2 to tn is a net loss for the agent. It is, as Smith
puts it, a mistake to conceive of net benefit (or loss) by treating “discrete
elements [of the person’s life] as if they were the whole of it.”20
I think that
Boonin’s argument makes just that mistake.
As remarked above, on Rand’s view, participation in the whole trader
relation is in one’s interest. Thus someone who violates the trader principle
loses out by the violation. The “goods” acquired as a result of such violations
are not just unearned and ill-gotten, but harmful to the getter. If violations of
the trader principle create debts, and punishment aims to collect those debts,
then punishment will bring an offender closer into alignment with the trader
principle than she is by violation of it (and potentially benefit her).21
Granted,
the primary aim of punishment is to collect or exact what’s owed to the victim
as the result of some culpably delinquent debt, not to benefit the offender.
However, punishment so conceived can be beneficial to the kind of offender
disposed to benefit from it. Consider two cases.
Suppose that I violate someone’s rights, deserve punishment, and
accept the legitimacy of my punishment in full. Ex hypothesi, accepting my
19 Tara Smith, Viable Values: A Study of Life as the Root and Reward of Value
(Lanham, MD: Rowman and Littlefield, 2000), p. 168. Smith’s discussion of this
crucial point seems to me to have gone underappreciated both among Objectivists and
among analytic philosophers.
20 Ibid., p. 173.
21 Rand’s view thus bears some resemblance to Robert Nozick’s claim that punishment
connects the offender with correct values. Cf. Nozick’s Philosophical Explanations
(Cambridge, MA: Harvard, 1981), pp. 374-80.
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punishment—sincerely resolving to pay my debt and then doing so—will
bring me closer into alignment with the beneficial trader relation that my act
violated. In this case, the “force” involved in state punishment becomes
epiphenomenal. If I choose to pay the debt that I owe—or when that’s not
feasible, choose to relinquish the enjoyment of ill-gotten goods to which I’m
not entitled—no exertion of force is required for the operation of punishment.
The “forcible” aspect of my punishment merely serves to ensure my
compliance if I lapse. Per impossibile, if my compliance could absolutely be
assured, force would never (and ought never) to kick in.22
I would just pay my
debt until I had discharged it. Since compliance with punishment cannot
typically be assured in this way, punishment in the real world inevitably
makes use of officers and institutions with enforcement power at their
disposal. But if I acknowledge my debt and resolve to pay it, the need for
enforced compliance will never arise, in which case I benefit from
punishment.
If I defy the punishment, of course, the government must compel my
compliance. This may well be harmful to me, but in this case, the agent of
harm is not punishment or the state, but myself. I have it within my power to
benefit from punishment, and have no justified reason for defiance. The harms
that arise do so by my own choice.
In neither case is it accurate to say that the aim of punishment is
intentional harm of the offender. On the contrary, apart from the harm
suffered by the victim of the original offense, harm need not enter the
equation at all. When it does, the causal explanation for any harm that does
arise is the offender’s character and choice, not the nature of punishment. The
offender causes the harm suffered by the victim, and the offender causes any
harm she suffers herself (both because vice is harmful to its practitioner and
because of any extra harms she suffers by defying punishment).
Rand’s theory of justice and her conception of punishment are thus at
odds not only with Boonin’s definition of punishment, but with his
formulation of the problem of punishment. I therefore think that Rand’s
conception responds to the spirit of the challenge that Boonin poses: On her
view, punishment is justified not as an intentional infliction of harm, but as a
means of collecting or exacting a culpably delinquent debt.
3. Reading the Rand-Hospers Letter Exchange
One might at this point wonder whether I’ve simply changed the
subject from the ones Boonin discusses in his critique. What about the
22 This may seem implausible, but for a suggestive example, see Erica Goode, “Miss
Manners Would Approve; a Judge Didn’t: ‘Polite Robber’ Is Given a 60-Month
Sentence in Gas Station Holdup,” The New York Times, April 2, 2011, p. A11. I find
the example suggestive rather than conclusive because I doubt the offender’s sincerity,
but if he were sincere, he would perfectly exemplify the attitude I describe in the text.
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Randian texts that Boonin discusses there? Am I dismissing them as irrelevant
to the claims I’ve discussed in the preceding section?
I’m not dismissing them and they’re not irrelevant, but I can’t accept
Boonin’s way of reading them, for reasons that may perhaps be clear from
what I’ve said in the preceding section. The text on which Boonin relies for
his interpretation of Rand’s views on punishment consists of a single page or
so (hereafter, “the Letter”) from the sixty pages of a letter exchange between
Rand and John Hospers, representing Rand’s side of the exchange (mostly)
minus Hospers’s. Indeed, Boonin limits his discussion to a few clauses of two
sentences of this single page, but I don’t think that this procedure really
captures Rand’s view. For one thing, it ignores too many of the background
assumptions required to make sense of what Rand is saying in the exchange.
Second, on purely textual grounds, I think Boonin misreads the Letter.23
Boonin opens his discussion of the Letter as follows:
Strictly speaking, the letter addresses the question of how much
punishment the state is justified in imposing on a particular person,
rather than the question of what justifies the state in imposing such
punishment in the first place.24
I think this gets things backwards. The discussion opens with a very broad
agreement about the relationship between justice and mercy. Rand then
reports Hospers’s interest in the question of what is “deserved, in specific
cases,”25
but Rand herself doesn’t take Hospers’s interest at face value. She
explicitly begs off from a discussion of the topic Hospers broaches on the
grounds that what needs discussion as prologue to that topic is a more general
discussion of the principles that justify and govern punishment as such. She
then dismisses Hospers’s question as “a technical, legal issue, which has to be
answered by the philosophy of law” and which she herself does not answer (or
try to answer) anywhere in the exchange, except to insist that “[i]t is an
enormously complex issue.”26
I should emphasize that the preceding point
applies equally to Rand’s discussion of what Boonin calls “the principle of
causality” and what he calls “the principle of retribution.” Neither principle is
intended directly to address the question of how much punishment the state is
justified in imposing in a given case.27
23 For further discussion, see Appendix C below.
24 Boonin,“Ayn Rand and the Problem of Punishment,” p. 61.
25 Letters of Ayn Rand, ed. Michael S. Berliner (New York: Plume, 1997), p. 558.
26 Ibid., p. 559.
27 Boonin claims that “the principle of retribution is explicitly presented as a principle
for determining the magnitude of deserved punishment only” (Boonin, p. 62). Once
again, I think this gets things backwards. Rand prefaces her discussion by saying that
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Boonin then suggests that we interpret Rand’s view by considering
the two abovementioned principles as two distinct and unrelated possibilities,
each to be considered in turn. I don’t think this is the right reading of the text.
Rand clearly does not intend the two principles to be read separately, but
intends them as two claims involving a single thesis. I take the “principle of
retribution” to be a special case of the “principle of causality.” The principle
of causality enjoins us “not to evade or break” the connection between what
the agent has caused and its effect; the principle of retribution, I take it, tells
us to impose restraints on those who break or attempt to break that connection
by force in criminal contexts (on the off-the-cuff assumption that few criminal
offenders will want to embrace their punishment).28
Taking the principle of retribution first, Boonin interprets it as saying
that “the state is justified in harming an offender because the offender, by
virtue of being an offender, harmed his victims.”29
But that’s not correct. For
one thing, there is no reference to “harm” anywhere in the passage. There is a
reference to “painful consequences,” but on Rand’s view, not all painful
consequences are harmful. Furthermore, Rand’s point is not simply that the
offender qua offender has harmed his victims, but that the offender deserves
punishment by having incurred a debt to the victim which he must repay by
bearing painful consequences. I grant that she doesn’t explicitly say that in the
Letter, but I think it follows from the account of the trader principle that I
gave in the preceding section, and nothing she says in the Letter contradicts it.
With respect to the principle of causality, Boonin concludes that the
principle only tells us what someone deserves, but “[t]o show that a person
deserves something is not to show that we are entitled to impose on him what
he deserves.”30
I think that Rand rejects the bifurcation assumed here between
what someone deserves and how we should act toward him: desert dictates the
payments and debts involved in any interaction. So it would not be a criticism
of Rand’s view to say that she had merely shown that an offender deserved
punishment. If he deserves punishment, that is because he has incurred a debt
to someone, in which case someone is entitled to collect the debt, presumably
the wronged person himself or someone who could justifiably serve as the
wronged person’s proxy.
she is not explicitly discussing the magnitude of deserved punishment, but “can only
indicate in a general way what principles should be at the base of legal justice in
determining punishments” (Letters, ed. Berliner, p. 559). She then makes reference to
three principles—enumerated in the text by the letters (a), (b), and (c)—which jointly
constitute “the base” of punishment. Only in conjunction with other unspecified
considerations do they determine the magnitude of deserved punishment.
28 Letters, ed. Berliner, p. 559.
29 Boonin, “Ayn Rand and the Problem of Punishment,” p. 62.
30 Ibid.
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4. Boonin’s Cases
Boonin ends his critique with four cases intended to illustrate the
invalidity of the three-step argument he ascribes to Rand on the basis of the
just-discussed principle of causality.31
The three-step argument, in turn, is
described first as an application of the principle of causality to ourselves, and
then, separately, as an application of the principle to the offender.32
I am
skeptical that Boonin’s three-step argument really captures Rand’s view, and
find the dichotomous applications of the principle of causality to self and
others misleading. I want to focus, instead, on Boonin’s four examples
considered as counter-examples to Rand’s conception of justice and
punishment. I don’t find them persuasive. For one thing, I don’t think that the
principle of causality really entails what Boonin takes it to entail in any of the
four cases. As far as the first three cases are concerned, I don’t think that Rand
would say about them what Boonin thinks she would. And I think that all four
examples suffer from a common methodological defect.
a. The passive interpretation of the principle of causality
The passive interpretation of the principle of causality (as I call it)
asserts that the principle of causality enjoins us to take a “hands-off” attitude
toward the causal chains initiated by other agents. On Boonin’s view, this
conception of the principle is too weak to justify punishment.
Take the case of the Flourishing Entrepreneur. As Boonin describes
this case, “[a] brilliant, independent, hard-working entrepreneur exemplifies
all of the Randian virtues to the highest degree,” so that “he is extremely
successful, wealthy, and happy.”33
On Boonin’s view, the principle of
causality tells “us to refrain from actively interfering with the natural causal
chain” initiated by the entrepreneur, but “does not require us actively to
reinforce or support it.”34
So Boonin concludes that the principle of causality
precludes theft or coercive redistribution. It’s tempting to agree and leave the
matter there, since Rand would of course condemn theft or forcible
confiscation of the entrepreneur’s property. What I would contest, however, is
the claim that the principle of causality “does not require us actively to
reinforce or support” the entrepreneur’s activities. The issue is more
complicated than that.
As I suggested in Section 2a above, Rand’s trader principle entails
that when we seek goods from others, we are obliged to pay them for what we
31 Ibid., pp. 63-66.
32 Ibid., p. 63.
33 Ibid.
34 Ibid., pp. 63-64.
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seek from them. Sometimes the payment in question will be a purely
monetary one for a purely monetary good, but sometimes more will be
involved. If we’re aiming to interact at our best with the best in other people,
we must pay them for the virtue they express in the interaction, as well as for
any goods and services we seek. Part of this payment may be monetary, but
some of it may not be. What Boonin omits in his discussion of this case is the
payment owed the entrepreneur for the virtue expressed by his actions.
Consider the case in which I’m actively in business with the
Flourishing Entrepreneur. Entrepreneurship is an inherently social activity
requiring mutual reinforcement and support of causal chains initiated by many
people at once (or close to at once). Even if we imagine a solitary
entrepreneur starting a business entirely on his own, the successful
effectuation of the causal chains he begins will require active reinforcement
and support by others. If no one interacting with the entrepreneur had these
obligations, entrepreneurial enterprise wouldn’t exist at all. So a completely
passive interpretation of the principle of causality is incompatible with the
existence of entrepreneurship as such. It cannot be what Rand intended, and
it’s not what her words imply. In the case of the Flourishing Entrepreneur, the
trader principle demands “value for value.” That formulation requires more
than not violating his rights and more than merely paying him the contract
price of his goods and services. In the case of a person of great virtue, the full
value of the interaction will exceed the contract price of any goods and
services exchanged. What the trader principle demands here is business
partners who match or strive to match the flourishing entrepreneur’s virtues
and act in appreciation of them.
Now consider cases in which I’m not actively in business with the
Flourishing Entrepreneur, but still interact with him in some indirect way.
Suppose that the flourishing entrepreneur and I are members of the same
social system.35
In this case, I may be a beneficiary of his work without having
ever become a business associate of his. I may be affected by how the legal
system treats him or by cultural attitudes toward him. And I have reason to
want the indirect benefits of his actions to keep coming to me. In this case, the
trader principle entails that I owe him payment of some attenuated kind. He
has no legal right to collect on it, and it may not even be monetizable, but it
exists. Rand in fact thought that we all (in a relatively capitalist economy)
bear connections of this kind to the class of producers (whether rich or poor,
entrepreneurs or wage earners), and owe them tangible expressions of
gratitude, admiration, and moral-political support.36
35 See Rand’s use of this term in her “What Is Capitalism?” in Ayn Rand, Capitalism:
The Unknown Ideal, Centennial Edition (New York: Signet, 1967), p. 9. Thanks to
Marsha Enright for drawing this term to my attention.
36 Cf. the discussion of the “pyramid of ability” in Ayn Rand, Atlas Shrugged (New
York: New American Library, 1957), pp. 988-89, with Peikoff’s comment on the
thematic point of Atlas Shrugged as well as his discussion of moral sanction in his
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I conclude that the principle of causality can require “us” actively to
support the Flourishing Entrepreneur’s activity—at least for those of us
relevantly circumstanced.
Now take the Not So Flourishing Loafer. It’s true that the poverty
that the loafer endures comes to him as a natural consequence of his loafing.
The principle of causality entails that we ought not to breach such chains. One
way not to breach the loafing-poverty connection is to leave the loafer alone
to suffer his fate, and on Rand’s view that can be a justified response. But it is
a mistake to conclude (as Boonin does) that the principle of causality always
and everywhere entails that response, or that Rand believed that it did.
Suppose that I bear a special relationship to the loafer, for example,
friendship.37
A friend may be a loafer but may have some virtues as well. The
natural consequence of friendship (with a virtuous person) is concern for the
well-being of the friend, including concern for him when he’s about to harm
himself. Is my berating my friend about the impropriety of his loafing a
breach of “the” causal chain? That depends on which causal chain we’re
talking about. One chain arises from the virtues my friend has displayed in the
past (in virtue of which I befriended him). Another arises from his loafing
now. The result is a complex combination of virtue-somewhat-vitiated-by-
vice. Does the principle of causality entail that I focus on the vice and ignore
the virtue? No. Ex hypothesi, the friend has some redeemable features by
which he might be persuaded to reform his character. The natural consequence
of having recognizably redeemable attributes is that your friends try to rescue
you from your folly. A natural consequence of folly is that it evokes negative
reactions. So it’s an oversimplification to say that the principle of causality
entails indifference to the fate of a loafer, period. It could entail concern,
condemnation, or assistance. It depends on the loafer.
In fact, Rand did not think that we ought never to cut checks to
loafers. She thought we shouldn’t cut checks to loafers qua loafers (i.e., in
virtue of their loafing), but that’s different from cutting a check to a loafer
whom you intend to convince to stop loafing because you think he has some
latent propensity for productiveness (or a smoker who might stop smoking, an
Objectivism, pp. 285-86.
37 I use the example of friendship here, but as Rand makes clear, we need not confine
the point to friends or intimates; it applies in a more complex way to strangers as well
(cf. “The Ethics of Emergencies,” in Rand, The Virtue of Selfishness, pp. 52-55, and
Ayn Rand, “The Question of Scholarships,” in The Voice of Reason: Essays in
Objectivist Thought, ed. Leonard Peikoff [New York: Meridian, 1990], pp. 40-45). The
issue of charitable assistance comes up repeatedly in Letters, ed. Berliner. There are
many examples there of Rand’s charity (in many cases to loafers or loafer-
equivalents), but among the most philosophically instructive are the ones to Marjorie
Williams of the Studio Club (June 18, 1936, Letters, pp. 31-33), and to Rand’s niece,
Connie Papurt (May 22 and June 4, 1949, ibid., pp. 445-47). It’s worth noting that
despite being her niece, Papurt was essentially a stranger to Rand.
Reason Papers Vol. 35, no. 1
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overweight person who might lose weight, a drug user who might go into
rehab, an F student who might start studying, etc.). Boonin’s example is not
sufficiently specified to distinguish between the very different sorts of cases
we might confront here, and is insensitive to the different kinds of causes and
effects in operation. The principle of causality is multiply realizable. In some
cases, it entails a hands-off attitude. In others, it doesn’t.
The overarching lesson, though, is that the passive interpretation of
the principle of causality cannot be the whole story about its proper
application.
b. The active interpretation of the principle of causality
Let’s now look at the reverse cases, those in which the principle of
causality is interpreted as requiring active support of natural causal chains.
Boonin’s point is that active support has implications inconsistent with Rand’s
views, and so, is in some sense too strong.
In the case of the Unlucky Entrepreneur, the entrepreneur
exemplifies all of the Randian virtues to the highest degree but unluckily
doesn’t reap the expected reward for having done so.38
I read Boonin as
making one of three distinct suggestions here, but I’m not entirely sure which
one he had in mind.
One suggestion is to “impose” a reward on the entrepreneur,
presumably by forcing him to accept the money that he deserves but through
bad luck hasn’t earned and through stubbornness won’t voluntarily accept.
Apart from difficulties about determining what the deserved amount would be
in abstraction from any market process, the trouble with this claim is that on
Rand’s view a forced imposition doesn’t count as a reward. To force
something on someone, even something (ordinarily or otherwise) good, is to
induce him to act in a way that bypasses his reasoning.39
A rational agent
aims, qua rational, at what is best for himself, and what is best for an agent is
to accept all and only those things that he autonomously takes himself to
deserve (assuming the capacity to do so).40
Since something forced on you is
38 I take the “all” and “highest degree” literally here, so as to preclude the many cases
of generally virtuous people who go into business insensitive to the fact that they are in
the wrong line of work or are marketing a good product in an ineffective way. The
highest degree of virtue would require full sensitivity to market conditions and full
provision for the possibility of bad luck. There may be cases of unlucky entrepreneurs
after that, but the situations will be sufficiently idiosyncratic to require us to think
more concretely about them than a short description would convey. A paradigm
fictional case might be Howard Roark at the lowest points of his career; see Ayn Rand,
The Fountainhead (New York: New American Library, 1971), roughly pp. 94-275.
39 See Rand’s discussion of this point in her “What Is Capitalism?” in Rand,
Capitalism, pp. 13-16.
40 The parenthetical comment is important. Nothing about Rand’s view precludes the
“imposition” of an unconsenting benefit in cases in which I literally lack the capacity
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not something you can take yourself to deserve (even if you do in fact deserve
it), nothing forced on you can be as good as the same thing accepted
voluntarily. An agent capable of revising his conception of desert is thus
better off being left free not to accept what he deserves (so that he can freely
revise his conception and accept it) than to be forced to accept it. The free
agent may be in error now, but can benefit from self-generated correction
gained by observation from the consequences of his error. The coerced agent
is ex hypothesi in error now, but doesn’t benefit from being coerced out of
error because coercion not only masks the consequences that would generate
correction, but in demanding acquiescence rather than offering reasons,
“corrects” the agent by subverting his capacity for independence. Since
independence is a virtue,41
such acquiescence is a vice, in which case coerced
instruction counter-purposively “rewards” the agent by harming him. It
follows that “imposing a reward” is, on Rand’s view, a contradiction in terms.
The agent has to accept reward voluntarily in order to benefit from it.
A second suggestion is to write the Unlucky Entrepreneur a “welfare
check.” In colloquial parlance, a “welfare check” is one distributed via a
government agency, with funds taken by coercive redistribution from
taxpayers. If that’s what Boonin intends, he is right that Rand wouldn’t
endorse it, but that’s because it violates the rights of third parties (something
that violates the principle of causality in their case), not because the
entrepreneur doesn’t deserve some support.
Alternatively, by a “welfare check” Boonin might mean a check
voluntarily written against the check-writer’s own funds, paid to the
entrepreneur as a means of relatively temporary assistance. Boonin describes
this as “a result that Rand would surely be unwilling to accept,”42
but I don’t
see why. She might object to a check written from a problematic motive (e.g.,
altruism; pity; a desire to reward the entrepreneur’s vices, errors, or
irrationality), but I see nothing in her work that suggests that she would object
to the idea of assistance to a deserving-but-unlucky person as such. On the
to benefit myself. If I’m unconscious in the street after being hit by a car, you may call
911 and have the paramedics treat me (without my consent) and rush me to the hospital
(without my consent), where the doctors and nurses save my life (without my consent).
But that is because I literally lack the capacity to consent throughout the event. Once I
regain the capacity, consent is required. Thus Rand’s view is compatible with what
Gerald Dworkin calls “soft paternalism,” but incompatible with “hard paternalism”;
see Gerald Dworkin, “Paternalism,” Stanford Encyclopedia of Philosophy, accessed
online at: http://plato.stanford.edu/entries/paternalism/. The ban on paternalism applies
only in cases where the agent could choose what is best for himself but either does
choose or is likely to choose what is bad.
41 See Peikoff, Objectivism, pp. 251-59, and Smith, Ayn Rand’s Normative Ethics,
chap. 5.
42 Boonin, “Ayn Rand and the Problem of Punishment,” p. 65.
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84
contrary, she repeatedly insists on the reverse in her letters, her fiction, and
her non-fiction: deserving but unlucky people ought to get assistance because
they have enacted virtue without receiving the deserved payment.43
So I don’t think that Boonin has correctly handled this case. The
principle of causality does not entail forced imposition of rewards, and Rand
has no objection to assisting the deserving but unlucky.
Finally, as to the Lucky Loafer, Boonin suggests that the active
interpretation of the law of causality entails that the loafer’s unearned billion
dollars ought forcibly to be confiscated from him. In this case, Boonin is right
to say that Rand would reject forcible confiscation, so the question becomes
whether the principle of causality really entails forced confiscation. I don’t
think it does. There’s no question that, on Rand’s view, an injustice takes
place in this example: both parties violate the trader principle. Some
punishment may well be justified (e.g., condemnation, ostracism, etc.). The
question is whether forcible punishment is. Consider three reasons against its
use.
First, recall that rights establish the background conditions for the
operation of the trader principle in a social system. The principle cannot
operate properly unless everyone is left free of coercion (i.e., everyone’s
rights are respected). And people who refrain from force do not deserve to
have it initiated against them. So both parties have rights to voluntary
exchange even if the exchange is immoral, which in this case it is.
Second, recall that in a voluntary exchange, both parties voluntarily
assume the risks of the exchange. What we have in this case are two people
consensually violating the trader principle, assuming the risks of doing so, and
taking the consequences. Neither party can claim to be aggrieved by the other
or have a further debt to the other. So the outcome in the Lucky Loafer case is
accurately described as an application of the principle of causality if no
confiscation takes place.
Third, it’s worth remembering that, on Rand’s view, there is no
pressure to assume that either party has gained from the transaction in such a
way as to require rectification. In both cases, perhaps counterintuitively, each
agent suffers a loss from the transaction. The billionaire loses a billion dollars
while incurring the opportunity costs of having used it more wisely. The
loafer qua loafer wastes a billion dollars on loafing. The loafer’s acquisition
of the money will seem like a reward or benefit if we assume that receipt of
any wanted good is a sufficient condition for achieving a net gain, but on
Rand’s view that is an illusion. As Tara Smith argues,44
a single transaction
will not yield a net gain if it violates a virtue. There is thus no desert-based
motivation for confiscation, unless we assume that the loafer’s possession of
the money is an intrinsic bad that requires rectification simply because it
43 See the references in note 37 above.
44 Smith, Viable Values, pp. 168-73.
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85
obtains, regardless of whether anyone is culpably put into debt by it. But Rand
rejects that assumption.45
In this case, both parties are punished by their folly,
leaving no further parties with a debt in need of collection.
I suspect that the Lazy Loafer case gets its bite from the supposition
that the loafer, on receiving the money, suddenly reforms his character and
uses it wisely—certainly a possibility. If he reforms his character, though, he’s
initiated a new causal chain, and the wiser he becomes, the more he comes to
deserve the money. In that case, it would violate the principle of causality to
take it away from him. The initial unearned receipt would deserve contempt
and criticism, but receipt of it is compatible with moral reform in the direction
of moral desert. Our loafer might not deserve a billion dollars at t1, but might,
on getting it, learn to live up to it at t2. On Rand’s view, he deserves the
freedom to do so.
So I don’t think that the Lucky Loafer is a counter-example to
Rand’s view. Since I don’t agree with Boonin’s handling of any of the four
cases, I reject the dilemma for Rand that he takes to follow from them.46
It
also seems to me that the distinction between active and passive
interpretations of the principle of causality is a red herring. That principle is
best understood in terms of the trader principle, which takes active and
passive forms in different contexts.
Finally, it seems to me that there is a basic problem common to all
four cases—underspecification. In each case the reader is treated as a
spectator surveying a scenario from afar without being told what relation he
bears to the actors in the scenario. Since the reader’s “relationship” to the
actors is unspecified, it is unclear what is intended by asking about or
asserting what “we” would do in each situation. Who is “we”? If “we” are
mere spectators utterly disconnected to the situations—watching them, so to
speak, on YouTube after a random Google search—then we might justifiably
do nothing but make judgments as to who deserves what, leaving it at that.
But if we are presumed to be interacting with the people in each scenario, then
we’re obliged to act a certain way vis-à-vis them. What way? In order to
answer that question, the agents’ relation to us would have to be specified in
more detail than Boonin provides. As suggested above, the cases are
insensitive to the difference between bearing no relation to us and bearing
some specific one.
5. Conclusion
Despite the length of my discussion, I have in many ways just
scratched the surface of the issues. I end, then, with some parting thoughts on
what is needed for the further development of the Objectivist theory of justice
45 See Rand, “What Is Capitalism?” in Rand, Capitalism, pp. 13-15.
46 Boonin, “Ayn Rand and the Problem of Punishment,” p. 66.
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generally, and of punishment in particular—thoughts gained in large part by
reflection on Boonin’s critique and his book.
As I’ve argued here, the Objectivist theory of punishment is really
just a theory for handling non-compliance with or violations of the trader
principle. However, development of a theory of non-compliance presupposes
a fuller grasp of the nature of compliance than I think we currently have. In
particular, we need a more developed account of the nature of payment
involved in Rand’s theory, and by implication, a more developed account of
the nature of debt.
Second, we need a more explicit account of the role of government in
implementing punishment. Presumably, government confines itself to the
implementation of punishments where force is required for the collection of a
debt. But where is that? Rights can after all be violated in a Lockean state of
nature where there’s no government to respond to them. If punishment is
justified there, then some debts can be collected by force in the absence of
government. On the other hand, if promissory reliance is sufficient for
contractual obligation, and if every breach of contract is a rights-violation,
there might well be rights-violations that are too trivial or problematic to be
adjudicable in a court of law (e.g., I stand you up for a date, I promise to have
sex with you but don’t). So government’s relation to punishment is extremely
complex, and could use a more systematic exposition.
Finally, I think Boonin’s challenges acutely suggest that we need a
more systematic and coherent account of the various different principles at
work in the Objectivist social philosophy. There are four or five such
principles (depending on how one counts them): several different versions of a
principle of causality or responsibility (mentioned in the Letter, in “The
Objectivist Ethics,” and in “Causality Versus Duty”),47
the trader principle
(discussed in “The Objectivist Ethics”),48
the principle of ends (invoked twice
in The Virtue of Selfishness),49
and the principle of rights and non-initiation of
force (discussed in several places in The Virtue of Selfishness and Capitalism:
The Unknown Ideal).50
These principles clearly were not intended to be
47 Letters of Ayn Rand, ed. Berliner, p. 559; Rand, “The Objectivist Ethics,” in Rand,
The Virtue of Selfishness, p. 28; Rand, “The ‘Conflicts’ of Men’s Interests,” in Rand,
The Virtue of Selfishness, pp. 59-60; and Rand, “Causality Versus Duty,” in Rand,
Philosophy: Who Needs It, pp. 133-36.
48 See Rand, “The Objectivist Ethics,” in Rand, The Virtue of Selfishness, pp. 34-35,
where the trader principle is described as governing “all human relationships.”
49 See ibid., p. 30, where this is described as the “basic social principle of the
Objectivist ethics.” Cf. a related formulation in Rand, “The Ethics of Emergencies,” in
Rand, The Virtue of Selfishness, pp. 53-54.
50 See, in particular, Rand, “The Objectivist Ethics,” in Rand, The Virtue of Selfishness,
p. 36, where non-initiation of force is described as “the basic political principle of the
Objectivist ethics.”
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equivalent, but if not, we need a better understanding of the distinct roles that
they play in Rand’s theory, and of the places they occupy in the hierarchy of
principles that make up that theory.
Appendix A: Peikoff and Smith on the Definition of “Punishment”
Leonard Peikoff defines punishment as “a disvalue inflicted in
payment for vice or fault; it is a negative such as condemnation, the
withholding of friendship or even outright ostracism, or the loss of money or
prerogative, including (in criminal cases) the loss of freedom or of life
itself.”51
Smith closely follows Peikoff’s definition in her discussion of justice
in Ayn Rand’s Normative Ethics.52
I find the Peikoff-Smith definition
problematic on at least three counts.
(1) The word “disvalue” in Peikoff’s definition is ambiguous as
between “something that harms the agent” and “something that the agent does
not value,” but these involve very different claims, and as it happens, I don’t
think that either is essential to the Objectivist conception of punishment. What
is essential (as I state in the text above) is that punishment collects or exacts a
culpably delinquent debt. The collection of a culpably delinquent debt may
well impose suffering on a given agent, but it need not harm him, and there is
no reason to think that the offender cannot in principle value the process of
paying back his debt. Indeed, in following Peikoff, Smith fails to see that his
definition is (depending on how we interpret it) incompatible with her own
(correct) claim that punishment need not be harmful.53
Perhaps Peikoff means
that the unjust person fails to value the paying of his debt in the act of being
delinquent, and thus in that act “disvalues” paying it. That’s a possible
interpretation, but it is not what he says, and I am not sure it is what he means.
(2) The phrase “disvalue inflicted in payment” is misleading and
potentially self-contradictory. Since “disvalue” could mean “harm,” and
payment typically denotes “something beneficial,” the phrase “disvalue
inflicted in payment” could easily be interpreted to denote a harm inflicted in
benefit, which makes no sense (a harm cannot be inflicted in benefit, and a
benefit cannot be inflicted at all). The phrase need not be interpreted in this
way, but Peikoff says nothing to exclude the preceding interpretation, and a
reader unsure about his meaning on issue (1) would be unsure of it on issue
(2).
51 Peikoff, Objectivism, p. 283.
52 Smith, Ayn Rand’s Normative Ethics, p. 156.
53 See ibid., p. 147.
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88
(3) Peikoff is insufficiently explicit about the fact that the concept of
“infliction” he invokes must be broad enough to cover both actions and
omissions, and among actions, must subsume acts that involve the use of force
and those that don’t, as well as physical acts and speech acts. His discussion
makes clear that he intends punishment to range broadly, but the choice of the
word “infliction” is awkward and misleading. In fairness to Peikoff, I myself
describe punishment above as an “exaction” or “collection,” and a similar
criticism might be made of my usage. Since, like Peikoff, I grant that
omissions can be punishments, a critic might reasonably ask how an omission
can be an exaction/collection. I take it that when a punishment involves an
omission, we are relying on predictable causal factors apart from our own
actions to do the collecting or exacting of the relevant debt (consider, e.g.,
“the silent treatment”).
Appendix B: Rights-Violations and the Trader Principle
My claim that all rights-violations incur debts by violating the trader
principle has, in discussion, been misinterpreted to mean that all rights-
violations are to be understood as attempts (or “botched attempts”) at trade.
To forestall confusion, it may be worth elaborating a bit on this issue.
The claim I defend in the text is that every rights-violation violates
the trader principle. On my view, the trader principle governs all human
interaction, whether trade is intended by any of the parties to the interaction or
not. Since, according to the trader principle, mutual consent and requisite
payment are necessary conditions of morally justified interaction, and all
rights-violations violate both conditions, all rights-violations ipso facto violate
the trader principle. Since every violation of the trader principle involves the
failure to make requisite payment for the interaction in question, in violating
the trader principle, every violator incurs a debt of some kind. Since every
rights-violation violates the trader principle in a special way, every rights-
violator incurs a debt of a special kind. If the rights-violation is culpable, the
rights-violator incurs his debt in delinquent fashion and punishment is
appropriate; the rights-violator is obliged to repay the debt he has delinquently
incurred. In any case, note that the claim I defend, every rights-violation
violates the trader principle, is neither equivalent to nor entails that every
rights-violation is (or is conceived by any interacting party as) either an
actual or attempted trade.
In discussion, Gregory Salmieri asks whether my view implies that
all rights-violations are in some sense “takings.” The answer is “yes”: If every
rights-violation fails to offer requisite payment for interaction, every rights-
violation takes from the victim what belongs to him.54
There may, of course,
54 This is true whether the rights-violation is culpable or non-culpable. I might non-
culpably dent your car, thereby taking from you its full use and value. That is a rights-
Reason Papers Vol. 35, no. 1
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be more to a rights-violation than its being an unjustified taking (we might
further describe it by the vices that brought it about or by the harm it did), but
unjustified takings are, on my view, essential to rights-violations.55
Salmieri
also asks whether my view implies that every rights-violation is a “botched
trade.” I find the question somewhat ambiguous, but if a “botched trade”
involves the intention to trade either by the aggressor or the victim, the answer
is “no.”
Appendix C: Interpreting the Rand-Hospers Letter Exchange
There are, in my view, special textual reasons for thinking that
Rand’s Letter cannot stand on its own as an account of her view of
punishment, but must be read in conjunction with “The Objectivist Ethics”
(and other published writings), reasons that become clear if one reads the
whole of Rand’s letter exchange with Hospers from beginning to end, starting
in April 1960, a full year before the Letter.
If one reads the whole exchange, it becomes clear that rancor
developed between Hospers and Rand over what Rand took to be Hospers’s
failure to conduct their oral conversations and letter correspondence with
more assiduous attention to her writings than he seems to have given,
including the speeches in her fiction. The rancor develops long before the
Letter discussed in the text, but it intensifies just a few weeks (and a few
letters) before it.
A close reading of these letters suggests that Rand seems at first to
have assumed that Hospers would have read her works very carefully and
would have conducted their philosophical discussion by exhibiting full and
explicit comprehension of all of her claims. Within short order, she seems to
have become disappointed by his failure to live up to her expectations,
repeatedly castigating Hospers, in effect, for failing to pay her writings the
attention she took them to deserve.56
Rand appears at some point to have
inferred that Hospers was writing to her in bad faith, claiming on the one hand
to admire Rand as a philosopher, while displaying on the other what struck
Rand as a stunning incomprehension of her writings.57
Matters are
violation, but not (on my view) a candidate for punishment.
55 Cf. Smith’s claim that the “crucial, distinguishing feature” of a rights-violation is its
preventing the victim from “acting as she chooses . . . at the cost of something else that
belongs to her” (Smith, Moral Rights and Political Freedom, p. 146, italics added).
56 The disappointment seems to have begun in earnest with the fourth letter, dated
January 3, 1961 (starting at Letters, ed. Berliner, p. 517).
57 See the end of the fourth letter (ibid., p. 534) and the beginning of the fifth, dated
March 5, 1961 (starting at ibid., p. 534), where Rand (correctly, I think) describes their
discursive situation as “tragic” (ibid., p. 534).
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90
complicated by the irony that Rand thought herself unjustly treated by
Hospers while engaged with him in a discussion about the very nature of
justice.
The Rand-Hospers letter exchange must be read with the preceding
conversational context in mind: every claim made after January 1961 is one in
which Rand expects that Hospers has read, grasped, and internalized the
claims of her writings by her standards of “read,” “grasped,” and
“internalized”—standards that Hospers clearly did not meet to her satisfaction.
If I am right about this, then Rand had a reason to be deliberately elliptical
about the background principles she was presupposing in the Letter. She may
have wanted to see whether Hospers would read her writings carefully enough
to make reference to the trader principle of his own accord.58
When he did not,
she inferred that he had failed to read her with due care, and abandoned the
conversation.
If this conjecture is right, then contrary to Boonin’s way of reading
the Letter, little turns on Rand’s use of definite articles when she adverts to,
say, “the” principle of this or that in the exchange. When she uses locutions of
this kind, she is not singling out a single principle as the only normative
consideration worth considering. She seems instead to be presupposing a
background context of principles and then singling out one for special
consideration, as if to say: “Of the range of principles that are relevant here
and with which, as a reader of my work, you’re already acquainted, the one
easily forgotten and very much worth remembering is. . . .” This implicit
preface is needed in order to make sense of her discussion of the principle of
retribution,59
where she enunciates three principles “at the base of legal
justice” (enumerated as “a,” “b,” and “c”), none of which is identical to what
Boonin calls “the principle of causality.” I take it that “the basic principle” is
not the only relevant principle in the discussion, and item (b) on her list is a
special case of “the basic principle.” Hence, I take myself to be justified in
going beyond the Letter and invoking the trader principle so as to interpret the
Rand-Hospers exchange.
In any case, both interlocutors repeatedly insist that the letter
exchange is highly elliptical and potentially misleading,60
and I myself would
insist that Rand’s unpublished writings must always be interpreted in terms of
58 Hospers had professed to liking Rand’s “The Objectivist Ethics” and of wanting to
discuss it with her, and yet Rand repeatedly felt the need to remind him after his saying
so of how he had either misunderstood it or failed to grasp its relevance to their
discussions (see ibid., pp. 542-43, 547, 555, and 561).
59 Ibid., p. 559.
60 Rand seems to have felt special exasperation at Hospers for having to remind him so
often of the content of writings he claimed to have read and understood. See ibid., pp.
502, 503, 507, 530, 534-42 passim, and 544.
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91
her published ones so that the latter take interpretive priority to the former—
thereby putting the trader principle at the center of any interpretation of
Rand’s conception of justice.61
61 I’d like to thank David Boonin for getting me to think harder about these issues, and
for motivating me to try to get them right. Thanks also to Neera Badhwar, Benjamin
Bayer, Carrie-Ann Biondi, Gregory Salmieri, and Christine Swanton for very helpful
conversation on the earliest version of this article, and to members of The Atlas
Society’s Online Research Workshop (Nathaniel Branch, Alexander Cohen, Kate
Herrick, David Kelley, Shawn Klein, Will Thomas, and Jason Walker) for discussion
of a later draft. Thanks as well to Jurgis Brakas for helpful written comments on an
intermediate draft, and to Alina Tugend for stimulating correspondence on the nature
of moral desert. Special thanks to Carrie-Ann Biondi for her editorial work on this
published version, and to Allan Gotthelf for the invitation to present the paper at the
Ayn Rand Society’s meeting at the Pacific Division American Philosophical
Association meeting in April 2011.